QUESTION: The Mishnah states that a child under the age of thirty days has no Erech value, but he does have a Neder value. One who pledges to give "the Erech of that child" to Hekdesh has no obligation to give anything, while one who pledges, with the wording of an ordinary Neder, to give "the value of that child" is obligated to give the child's value as assessed by the price that would be given for the child on the slave-market.

The Gemara quotes a Beraisa in which Rebbi Meir argues with the Tana of the Mishnah and says that one who pledges to give the Erech of a child under thirty days old must give the child's value to Hekdesh, as assessed by the child's worth on the slave-market. Even though the person used the word "Erech," and the Torah gives Erech-values only for persons above the age of thirty days, nevertheless we assume that he meant to pledge the child's market-value as a Neder. Rebbi Meir is of the opinion that a person does not utter words for no purpose; therefore, when a person's words seem to be meaningless, we assume that he meant to say something meaningful and we interpret his words accordingly.

Rebbi Meir's view, however, is difficult to understand. Rebbi Meir himself maintains that in order for a person's words to be effective, they must express exactly what is in his heart ("Piv v'Libo Shavin"). Rebbi Meir rules (in Pesachim 63a) that one who intended to say, "These fruits are Terumah," but actually said, "These fruits are Ma'aser," has said nothing and the fruits are not Kadosh at all! How, then, can a person's statement to give the Erech of a child under the age of thirty days obligate him with a Neder to give the child's value?

ANSWERS: To understand the view of Rebbi Meir here, we must first understand why he requires "Piv v'Libo Shavin" in the case of Terumah. Why does Rebbi Meir require that the person say explicitly, "These fruits are Terumah," when the Halachah is that one may separate Terumah through thought ("Machshavah") alone (Bechoros 59a, Shevuos 26b)? Even if he said nothing, but only intended in his thoughts for the fruit to be Terumah, the fruit would be Terumah! Why, then is the fruit not Terumah when he accidentally said the word "Ma'aser"?

(a)TOSFOS (DH Adam) explains that when the Gemara in Pesachim says that the person's words are meaningless, it means only that the words "these fruits are Ma'aser" are meaningless. The fruits, however, are Terumah, since he intended to make them Terumah, and Terumah takes effect through thought alone. Similarly, in Rebbi Meir's ruling in the Gemara here, since the person had in mind to give the market-value of the child, his thoughts are effective and we ignore his mistaken words.

(b) Tosfos suggests another answer. In the case of Terumah, the person erred in his verbal statement (by saying "Ma'aser" instead of "Terumah"). Verbally expressing the wrong word renders even his thoughts invalid. Machshavah works to make fruits Terumah only when it is not contradicted by a person's speech. If one's speech contradicts what he has in his mind, then it overrides the Machshavah and the Machshavah is disregarded.

In the case of Erchin, though, the person's words were not in error; he said what he intended to say. He intended to pledge the Erech of the child, and those were the words that he said. Therefore, his words do not contradict his thoughts to render them invalid.

The RASH (Terumos 3:8) explains that when one's statement contradicts his thoughts, his verbal statement impairs, so to speak, his thoughts and they are unable to take effect. Since, in the case of Erchin, his words do not contradict his thoughts, his thoughts take effect and he is obligated to pay the Neder-value of the newborn.

The reason why one's thoughts do not take effect when contradicted by one's speech may be understood based on the words of the Gemara in Shevuos (26b), as explained by the TUREI EVEN (in Avnei Shoham to Chagigah 10a). The Gemara there explains that even something that can take effect through Machshavah takes effect only when the person intends for it to take effect through Machshavah. If he decides that he is going to cause it to take effect through a verbal expression of his intent, then it does not take effect through Machshavah but rather through speech. The SHACH (YD 258) understands this to mean that when a person decides to express his intentions verbally, he does not want his thoughts to take effect until he says them aloud. Accordingly, when the person wants to express verbally that "these fruits are Terumah," he intends that his thoughts not take effect until he expresses them verbally. However, since he said "Ma'aser" instead of "Terumah" when he spoke, the fruits do not become Terumah because he did not accurately express his thoughts (and he showed that he does not want his thoughts to take effect independently, but only through speech).

In contrast, the person who pledged to pay the Erech of a newborn baby said exactly what he intended to say, and therefore his thoughts (to give the market-value of the child) are binding. (See Insights to Pesachim 63:2.)

5b----------------------------------------5b

2) A NOCHRI'S OBLIGATION TO KEEP HIS WORD

QUESTION: The Mishnah records a Machlokes between Rebbi Meir and Rebbi Yehudah with regard to the Erech of a Nochri. Rebbi Meir maintains that when a Jew pledges the Erech of a Nochri, he is obligated to give the Erech of the Nochri had the Nochri been a Jew. In contrast, when a Nochri pledges to give an Erech, his pledge is meaningless. Rebbi Yehudah says the opposite: when a Jew pledges the Erech of a Nochri, his pledge is meaningless, but when a Nochri pledges to give an Erech, he is obligated to give the Erech that he would have had to give had he been a Jew.

The OLAS SHLOMO asks that the only apparent relevance of whether a Nochri can effect a pledge of Erchin is whether the Nochri is obligated to fulfill his word. This implies that, in general, a Nochri is obligated to fulfill his word. However, this requirement does not seem to be included in the obligations of Nochrim, as it is not included in the seven Mitzvos of Bnei Noach (and it is not included in the list of the thirty Mitzvos that apply to Bnei Noach according to the opinion of Ula in Chulin 92a; see Insights there). The Olas Shlomo does not accept the suggestion that the Nochri's ability to effect a pledge of Erchin is relevant to whether we accept the money from the Nochri, because everyone agrees that we accept the money pledged by a Nochri for Bedek ha'Bayis through a Neder.

To answer this question, the Olas Shlomo quotes TOSFOS in Avodah Zarah (5b, second DH Minayin l'Mechusar Ever). Tosfos there says that if a Nochri designates as a Korban an animal that is missing a limb, which Nochrim do not consider fit to be offered on their altars (and thus it obviously may not be brought in the Beis ha'Mikdash), we tell him to bring a complete Korban. Tosfos says that although the Isur against offering such a Korban is not among the seven Mitzvos of Bnei Noach, nevertheless this Mitzvah still applies to them. This is because the seven Mitzvos are not an exhaustive list of all of the Mitzvos that apply to Nochrim, but rather they are the Mitzvos that Nochrim must actively perform (see Sanhedrin 58b-59a). Since keeping one's word is a passive Mitzvah, it is not listed among the seven Mitzvos.

REBBI AKIVA EIGER (in GILYON HA'SHAS to Avodah Zarah 5b) challenges the words of Tosfos. What source teaches that a Nochri has any obligation to keep his Neder? Nowhere is a Nochri commanded to keep any of the laws of Nedarim. What verse or Mitzvah requires the Nochri to bring a Korban that is whole instead of the deficient animal that he pledged to bring?

ANSWERS:

(a) The TORAS ZERA'IM to Pe'ah (p. 22) explains that a special law is derived from the verse quoted in Menachos (73b) that teaches that Nochrim may bring Nedarim and Nedavos. That verse also teaches that Nochrim are obligated to fulfill any Nedarim that they make that pertain to Hekdesh, even though they otherwise have no Halachic obligation to keep their oaths.

The Olas Shlomo give a similar answer with regard to Erchin. The RAMBAM (Hilchos Erchin 1:1) states that the concept of Erchin is enforced by the positive commandment, "k'Chol ha'Yotzei mi'Piv Ya'aseh" -- "like all that comes out of his mouth he shall do" (Bamidbar 30:3). The Rambam seems to understand that once the verse teaches that Nochrim may bring Nedarim and Nedavos, they are included in the Mitzvah to fulfill their word as well.

(b) The AVNEI MILU'IM (1:2) answers that it is true that there is no prohibition or commandment that obligates a Nochri to keep his word to bring a Korban. However, there is a concept of "Amiraso l'Gavo'ah k'Mesiraso l'Hedyot" -- verbally proclaiming an object as Hekdesh accomplishes the same thing as physically handing over an object to an ordinary person, and thus one's spoken word causes the object to be acquired by Hekdesh. This principle dictates that one's verbal pledge to Hekdesh creates a binding, monetary obligation. The monetary obligation that results from the Nochri's pledge is binding like any other monetary transaction. This obligates him to bring another, whole Korban and to fulfill his pledges of Erchin.

(c) The MITZPEH EISAN in Menachos (5b) answers that the requirement for a Ben Noach to fulfill his Nedarim is derived from the conduct of Yakov Avinu. The Midrash states that Yakov Avinu was punished because he delayed fulfilling his Neder to bring Korbanos. This is part of the reason why he had to endure the troubles of Dina with Shechem and the near-war with Esav. The punishment was not a result of his failure to abide by the Torah's laws fully (as Yakov generally adhered to all of the Mitzvos of the Torah even though it was not yet given), because he was not obligated to abide by the Torah's laws and would not have been punished for failure to do something that he was not obligated to do. Rather, it must be that he was punished for not properly fulfilling the obligation of a Ben Noach to keep his word.

This approach is also suggested by the MISHNEH L'MELECH (Hilchos Melachim 10:7). The Mishneh l'Melech adds the examples of Avraham and Yitzchak, who made Avimelech make an oath. It is evident from there that Nochrim are commanded to keep their promises.

However, what is the specific commandment, according to this approach, that obligates Nochrim to fulfill their oaths? After all, it is not one of the seven Mitzvos of Bnei Noach. The MESHECH CHOCHMAH (Shemos 20:7) explains that although there is no explicit Mitzvah that requires Nochrim to fulfill their oaths, this obligation is an obvious moral responsibility that falls in the category of a "Mitzvah Sichlis," a logical Mitzvah. Since it is a "Mitzvah Sichlis," a Nochri receives a punishment from Shamayim for violating his oath, even though Beis Din cannot punish him (as it is not one of the seven Mitzvos of Bnei Noach). This reasoning is also alluded to by the Mishneh l'Melech (ibid.). (Y. MONTROSE)

3) A GIFT GIVEN BY A NOCHRI TO THE BEIS HA'MIKDASH

QUESTION: The Mishnah and Beraisa quote the view of Rebbi Meir that a Nochri's pledge to donate to the Beis ha'Mikdash has no Halachic validity. Rava says that Rebbi Meir's view is supported by the verse, "It is not for you (the Kusim) to be with us to build a sanctuary for our G-d" (Ezra 4:3), which implies that we do not accept gifts for Bedek ha'Bayis from Nochrim, whether they are pledges of Erchin or ordinary pledges of Nedarim.

However, the Mishnah clearly states that Rebbi Meir agrees that a Nochri may pledge a gift as a Neder to the Beis ha'Mikdash! How, then, can Rava say that the verse supports the view of Rebbi Meir?

ANSWERS:

(a)TOSFOS (DH Ela) answers that Rava retracted his opinion and agreed that we cannot derive from the verse that a Nochri may not donate gifts to the Beis ha'Mikdash. The verse was said at a time when the Kusim were attempting to disrupt the rebuilding of the Beis ha'Mikdash, and they hoped that by pledging to give essential materials they would be able to delay and withhold from giving their gifts long enough to persuade Koresh (Cyrus) to rescind the permission he granted the Jews to rebuild the Beis ha'Mikdash (RASHI, DH Mishum Rifyon Yadayim). For this reason, contributions from Nochrim were banned at that time. (It remains to be clarified, however, what Rava's initial assumption was when he suggested that the verse means that Nochrim in general may not give gifts to the Beis ha'Mikdash.)

(b) The RAMBAM (Hilchos Erchin 1:12) writes that Rebbi Meir agrees that a Nochri's consecration of a gift to the Beis ha'Mikdash does take effect, and the money or item becomes Hekdesh. However, what the Nochri gives requires Genizah (burial).

According to the Rambam, how is this evident in the verse that Rava cites? It must be, as the SHITAH MEKUBETZES (#18) points out, that Rava does not actually derive Rebbi Meir's rule from the verse, but rather he sees the verse as an indication that it is logical not to accept Erchin from Nochrim.